Memorandum of Law & Fact

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Lawful Social Contracts

The title-transfer model clearly eliminates the possibility of creating fully functional religious social compacts. This is a huge conflict with the Bible-based property-interest model. But the title-transfer model doesn’t merely eliminate religious social compacts. It also eliminates all reasonable and coherent attempts at developing reliable Bible-based jurisprudence. Rothbard:

There is one vitally important political implication of our title-transfer theory, as against the promise theory of valid and enforceable contracts. It should be clear that the title-transfer theory immediately tosses out of court all variants of the "social contract" theory as a justification for the State. Setting aside the historical problem of whether such a social contract ever took place, it should be evident that the social contract, whether it be the Hobbesian surrender of all one’s rights, the Lockean surrender of the right of self defense, or any other, was a mere promise of future behavior (future will) and in no way surrendered title to alienable property. Certainly no past promise can bind later generations, let alone the actual maker of the promise. 31

As already indicated, 32 the hermeneutical prologue and this memorandum certainly do not argue against Rothbard’s claim that the promises of past generations cannot bind current or future generations. But as shown in the preceding sections, Rothbard’s claim that "no past promise can bind . . . the actual maker of the promise" is not absolute. His claim may be true within the jurisdiction of a secular social compact, but it is not necessarily true under the jurisdiction of a religious social compact. Religious social compacts must be allowed the freedom to recognize evidence from all three fields of perception and action, 33 even while secular courts are mostly limited to evidence from the physical field of perception and action. This allows religious social compacts the ability to maintain their own moral code, and maintenance of their own moral code must necessarily allow such compacts to treat promises as inextricably connected to property interests. If a contract dispute within a religious social compact is ever appealed into a secular court, the secular court would be compelled to use the definition of property, and the presumed absence of linkage between promise and property interest, that is appropriate to secular courts. This keeps non-secular morality from being enforced in secular courts, except to the extent that secular and religious moral codes may overlap. This arrangement mitigates the concerns of Rothbard, Evers, and other adherents to the title-transfer model about the "inchoate" nature of current contract adjudication. The title-transfer model is nevertheless aimed at intentionally or unintentionally hacking down the entire biblical edifice.

If the title-transfer model were given the absolute authority that Rothbard clearly believes it deserves, he would be right in claiming that it "tosses out . . . the ‘social contract’ theory as justification for the State". But Rothbard is hereby assuming that his model has more authority than it deserves. The title-transfer model has a place in defining evidence necessary for a claimant to satisfy his burden of proof in a secular ecclesiastical court. For Rothbard to presume, without adequate proof, that the title-transfer model eliminates the possibility of forming a social compact, is essentially for him to assume that the secular religion should replace the Scriptures from which it arose. In fact, the secular social compact is not "a mere promise of future behavior". It is based on each party’s promise, where that promise is directly and intimately linked to the global proscription of the destruction of one life by another and the global need to execute justice against such destruction. The secular social compact, the jural compact, and the secular ecclesiastical compact are all entered voluntarily. But the fact is that the secular religion is still a religion, even though it is unique among religions, and because it is a religion, property interests accompany promises. Such promises are inextricably connected to property, because the promise, in order to be of any value, must be an immediate surrender of interest in the promissor’s property. It’s not a surrender of interest in all of the promissor’s property by any means. It is surrender of only so much interest in the promissor’s property as is necessary for the jural society to fulfill its lawful duties as defined by its extremely limited subject-matter jurisdiction. According to the Bible, this property interest derives from the bloodshed mandate. This bloodshed mandate applies to all human beings without exception. Formation of a jural society for the sake of ensuring the satisfaction of that mandate is better than trying to satisfy it as a lone ranger. Rothbard is right in claiming that one generation cannot bind another. He is also right in recognizing that State power is abused so much in human history that it needs to be held under constant scrutiny, and corrected by all possible means. This is precisely why participation in these secular compacts must be voluntary, and why such secular compacts should always have escape clauses for denizens.

According to Williamson Evers:

In the end, therefore, social contract theory is incompatible with natural-rights liberal theory since this latter theory derives rights from the factual premise of the inalienability of the will and hence rules out from the start legitimate self-enslavement. Instead, we can recognize that the duty of obedience to the rule of just law can be explained, without any recourse to a social contract, in terms of the duty of non-aggression which is the necessary correlative of human rights. 34

Evers claimed that none of the social contract theories that he examined in his "Social Contract: A Critique" avoided the social contract’s propensity to impose slavery on it’s people. As he said,

Most importantly, all the social contract theories appear to entail in practice a contract of at least partial self-enslavement to Socrates’ Athenian regime, to Hobbes’ sovereign, to Locke’s majority, to Rousseau’s popular law-making assembly and administrative government, or to Rand’s law-enforcement monopoly. 35

So based on his examination of these flawed philosophies, he throws out the social contract theory entirely. He says, "the duty of obedience to the rule of just law can be explained, without any recourse to a social contract, in terms of the duty of non-aggression", as though this by itself will suffice to protect people against people who don’t care about other people’s rights. By eliminating the social contract, Evers, Rothbard, and company supply no mechanism for the protection of natural rights, other than the possible use of private security guards. Such security guards – if they are not overseen by a system of due process that relies on millennia of aggregated jurisprudence – are nothing more than establishment of vigilance committees. As such, they are nothing more than regression into a state in which war-lords protect their turf against other war-lords. So this proverbial act of tossing the baby out with the bath water is nothing more than another prescription for utopian disaster.

In "Robert Nozick and the Immaculate Conception of the State", Rothbard says,

A basic fallacy is endemic to all social-contract theories of the State, namely, that any contract based on a promise is binding and enforceable. If, then, everyone–in itself of course a heroic assumption–in a state of nature surrendered all or some of his rights to a State, the social-contract theorists consider this promise to be binding forevermore. 36

The property-interest theory of contracts does not suffer from this "basic fallacy" that Rothbard claims "is endemic to all social contract theories of the State". That’s because the property-interest model does not claim that "any contract based on a promise is binding and enforceable". It claims that secular contracts are usually not binding and enforceable if they are based merely on a promise. On the other hand, it claims that religious contracts usually are binding and enforceable based on a promise. Furthermore, it claims that contracts that are created and enforced under the jurisdiction of a secular social compact are inherently secular contracts. But the contracts that create and maintain the secular State – as distinguished from contracts that merely exist under the jurisdiction of the secular State – are contracts that are inherently religious. This is because the secular State exists above all for the sake of satisfying the limited functions of a jural compact, and a jural compact exists solely for the sake of protecting natural rights to primary and secondary property, such functions being the sole purpose of the secular religion, at least so far as human law is concerned. With these distinctions made, it should be clear that the property-interest theory does not claim that "If . . . everyone . . . in a state of nature surrendered all or some of his rights to the State, . . . this promise . . . [is] binding forevermore". The property-interest model doesn’t set the "state of nature" against "the State" as though the two are polar opposites. On the contrary, the "state of nature" exists perpetually because the natural law exists perpetually. As long as people perpetrate death, damage, and injury against person or property, the demand for institutional machinery for redressing such grievances will not vanish into utopia. Such demand is what creates the need for jural compacts, ecclesiastical compacts, and secular social compacts, not promises that are presumed to be binding forever.

When Evers says, "we can recognize that the duty of obedience to the rule of just law can be explained, without any recourse to a social contract, in terms of the duty of non-aggression", he makes a presupposition based on his religion. From where does his "duty of non-aggression" come? Can it be induced from natural sense data? No! Is it deduced from some axiomatic system? In the final analysis it’s obvious that it’s from an axiomatic system, and it’s obvious that his system, like all axiomatic systems, is ultimately a religion. His axiomatic system is built from borrowed capital, where such capital originated historically primarily from the Bible. In the final analysis, all axioms are essentially laws, and from the biblical perspective, all laws are essentially terms of covenants and contracts. The hermeneutical prologue recognizes a system of covenants and contracts that establish relationships between their axioms/laws/terms, and these relationships establish jurisdictions. If jurisdictions are not crucial to law enforcement, then laws hang in the ether without sufficient regard to how they should be applied. The title-transfer model is therefore utopian and insufficiently holistic. It’s like a fine car with a V-8 engine that’s only firing on four cylinders. Even though Rothbard and Evers reject the social contract, it’s clear that they are operating in the same philosophical tradition as the social contractarians that they criticize. That is a tradition that mimics Scripture, pretends it’s not mimicking Scripture, and does a thoroughly deficient job at such mimicry and pretense.

In a Bible-based social contract, the people do not surrender their sovereignty. They merely designate agents to comprise the jural society. The jural society does not become the sovereign. Sovereignty remains with the people. Because history speaks clearly and loudly that human governments are prone to absolute corruption, it’s important for every human being to only deal with secular governments from the perspective that every human being is a miniature sovereign, and is the source of whatever lawful authority such governments may have. If nothing else, doing so keeps people from giving knee-jerk obedience to unlawful governments.

The bloodshed mandate in the Noachian Covenant is two-sided. The negative side says, paraphrasing, Thou shalt not destroy life, liberty, or property of other people. The positive side says, Thou shalt execute justice against anyone guilty of destroying life, liberty, or property of other people. Participation in this Covenant transcends human choice. All human beings are subject to this biblical prescription of global human law. The human will, the human ability to choose, is emphatically not so exalted that it transcends alienability on this front. Murderers, even if they choose otherwise, pay with their lives, because their actions have alienated their natural rights. They have surrendered their unalienable Rights. This sentiment, and only this sentiment, is the rightful motivation for forming secular social compacts. The statists’ vision of imperial glory is a dream from hell that deserves repudiation at every possible opportunity. A crucial aspect of that repudiation demands acknowledgement of the fact that the global moral obligation to enforce against destroyers of life does not translate immediately into human law.

The Noachian Covenant is a contract that no one can opt out of. No amount of will exaltation frees anyone from its obligations. The covenant of works establishes that humans are created in the image of God (Genesis 1:26-27). The Noachian Covenant acknowledges this and obligates all humans to submit to the minimal duties of avoiding the destruction of life, liberty, and property and executing justice against destroyers of life, liberty, or property. These obligations in no way excuse the destruction of life, liberty, and property perpetrated by such enforcers.


31 The Ethics of Liberty, Chapter 19, "Property Rights and the Theory of Contracts". — URL: http://​​rothbard/​ethics/​ethics.asp.

32 URL: ./1_PEvCE.htm​#Denizen.

33 Specifically, Spiritual, psychic, and physical.

34 "Social Contract: A Critique", Journal of Libertarian Studies, Vol. 1, No. 3, pp. 185-194. — URL: http://​​jls/​1_3/1_3_3.pdf.

35 "Social Contract: A Critique", Journal of Libertarian Studies, Vol. 1, No. 3, pp. 185-194. — URL: http://​​journals/​jls/​1_3/1_3_3.pdf.

36 The Ethics of Liberty, Chapter 29, "Robert Nozick and the Immaculate Conception of the State". — URL: http://​​rothbard/​ethics/​ethics.asp.

copyright © 2008, 2019 Charles Raleigh Porter, III
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